Federal Ins. Co. v. Forristall, 6667

• Decision Date: 31 March 1966
• Docket Number: No. 6667,6667
• Citation: 401 S.W.2d 285
• Parties: FEDERAL INSURANCE COMPANY et al., Appellants, v. George D. FORRISTALL et al., Appellees. . Beaumont
• Court: Texas Court of Appeals

Page 285

401 S.W.2d 285

FEDERAL INSURANCE COMPANY et al., Appellants, v. George D. FORRISTALL et al., Appellees.

No. 6667.

Court of Civil Appeals of Texas Beaumont.

March 31, 1966.

Rehearing Denied April 20, 1966.

Wells, Duncan & Beard, Keith, Mehaffy & Weber, Beaumont, for appellants.

Weller, Wheelus & Green, Orgain, Bell & Tucker, Beaumont, for appellees.

HIGHTOWER, Chief Justice.

This is a suit for declaratory judgment in which the appellees, George D. Forristall and his son, George Z. Forristall, a minor, sought judgment by the 136th Judicial District Court requiring the appellants, Gulf Insurance Company, Federal Insurance Company, and Zurich Insurance Company to defend a suit which had been filed against them in the district court of Jefferson County, Texas, 60th Judicial District, by C. E. Vallee, Jr. In the damage suit in the 60th Judicial District Court, C. E. Vallee, Jr. sought to recover damages against George D. Forristall, George Z. Forristall, and W. H . Marlow of $1,630.00 for damages to the Vallee automobile.

The petition filed by C. E. Vallee, Jr. in the damage suit in the 60th District Court of Jefferson County, Texas, contained the following allegations:

'That on or about April 10, 1960, your plaintiff properly parked his 1960 Pontiac automobile at the Beaumont Country Club in a safe and proper place. The defendant, George Z. Forristall, at such time was driving an automobile owned by the defendant, George D. Forristall, his father, with his father's consent and permission. While so operating said vehicle the defendant, George Z. Forristall, parked the same immediately behind your plaintiff's vehicle. Later the defendants, George Z. Forristall and William H. Marlow, desiring to leave the Country Club premises in the Forristall vehicle, found that they were unable to do so because they were parked between plaintiff's automobile and another automobile. Said defendants, in order that they might use the Forristall automobile and in order to extricate it from the place where it was parked between plaintiff's automobile and another, decided that they would enter your plaintiff's automobile and release the gearshift from parked position and put it in motion, shoving it a sufficient distance to get clearance to enable them to drive said Forristall automobile from such parking place. At the time and on the occasion in question it was then apparent, or in the exercise of ordinary care, should have been apparent to the defendants, George Z. Forristall and William H. Marlow, that plaintiff's vehicle as well as other vehicles were parked on an incline and that in moving the same it would be necessary to maintain it under control to keep it from rolling down said incline to the adjacent river. Nevertheless, the defendants, George Z. Forristall and William H. Marlow, put your plaintiff's automobile in motion and shoved it with sufficient force that it rolled down an embankment and crashed into the boathouse and went into the river, as a result of which your plaintiff suffered damages as hereinafter set forth.'

The acts of negligence set out in the Vallee damage suit against the appellees, George D. Forristall and George Z. Forristall, were the following:

(1) Defendant, George Z. Forristall, without the consent of plaintiff, manipulated the gear-shift of the plaintiff's automobile for the purpose of setting said automobile in motion, in violation of Article 1343 of the Penal Code of Texas;

(2) Defendant, George Z. Forristall, shoved plaintiff's automobile when it was on an incline;

(3) Defendant, George Z. Forristall, failed to properly control plaintiff's vehicle;

(4) Defendant, George D. Forristall, entrusted his automobile to his minor son, a known incompetent driver;

(5) Defendant, George D. Forristall, in violation of Article 6687(b) Section 35, Texas Revised Civil Statutes, permitted his minor son, George Z. Forristall, to drive a motor vehicle when the said minor did not have a valid Texas Driver's License.

Gulf Insurance Company had issued to George D. Forristall a family automobile policy. Federal Insurance Company had issued a Texas standard comprehensive dwelling policy to George D. Forristall and wife, Dorothy Z. Forristall, of 1250 Oakcrest Circle, Beaumont, Texas. ¹ The policy carried a 'coverage group C-comprehensive personal liability' endorsement. Zurich Insurance Company had issued a family automobile policy insuring C. E. Vallee, Jr.

After service of citation on the Forristalls in the damage suit pending in the 60th Judicial District Court, they tendered defense of the cause to Gulf and Federal Insurance Companies and both refused to defend the case. In addition, the Forristalls demanded that Zurich Insurance Company defend the case brought by Vallee against the Forristalls. Zurich was the automobile carrier for Vallee, and apparently the contention was that young Forristall was an 'omnibus' insured using the Vallee car with the implied permission of the owner.

This case was tried without a jury and at the conclusion of the case, judgment was entered substantially to the effect that both Federal and Gulf should defend the suit pending in the 60th Judicial District Court brought by Vallee against the Forristalls. Because of the difference in the policy limits, Gulf's liability was prorated 1/4 and Federal's, 3/4. In addition thereto, the court made an award of $1,000.00 attorneys' fees to the Forristalls.

The trial court exonerated the Zurich Company of any liability to the Forristalls in the declaratory judgment and no appeal has been perfected against said company. Since that part of the judgment has become final, we consider only the appeals of Federal and Gulf.

Essentially, the points of error upon which Federal and Gulf predicate their appeal are the same. Each contend (1) that the judgment requiring them to defend the suit in the 60th District Court should be reversed and rendered because neither of their policies provide coverage for the incident in question; (2) the award of attorneys' fees is excessive. Additionally, Federal urges error of the trial court in holding Federal had waived any defenses under its policy by reason of having made an investigation of the incident.

We first determine the merits of Federal's contentions.

Federal's policy provides:

'Division 1--Comprehensive Personal Liability:

'A. Bodily Injury; Property Damage: This company agrees to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * and as damages because of injury to or destruction of property, including the loss of use thereof.

'C. Defense, Settlement, Supplementary Payments With respect to such insurance as is afforded by this policy for the liability coverages, this company shall:

'(a) defend any suit against the insured alleging such injury, sickness, disease, or destruction and seeking damages on account thereof, even if such suit is groundless, false, or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient.'

Our attention is called to the well-established general rule that the insurer is required to defend only those cases which come within the 'coverage' afforded by the policy under consideration and that the cases go one step further and hold that the insurer is entitled to rely upon the allegations contained in a plaintiff's petition in determining whether a particular state of facts comes within the coverage of the policy. In the case of Maryland Casualty Co. v. Moritz, 138 S.W.2d 1095 (Tex.Civ.App.1940 wr. ref.) the court stated the following:

'* * * testing the liability of the insurer to defend, the proof is not material. Liability depends upon the allegations of the plaintiff's petition.'

Alluding to the allegations of the plaintiff in the Vallee damage suit hereinbefore first set out, it is the contention of Federal that the following exclusions in its policy specifically exclude coverage when examined in the light of the facts alleged by the plaintiff in the Vallee damage suit:

'Special Exclusions Appliable to Coverage Group C

'This coverage does not apply:

'(b) to the ownership, maintenance, operation, use, loading or unloading of (1) land motor vehicles * * * while away from the premises or the ways immediately adjoining * * *.

'(f) Under Division 1, to injury to or destruction of property used by, rented to or in the care, custody or control of the insured, or property as to which the insured for any purpose is exercising physical control * * *.'

Federal argues that it is obvious from the allegations contained in the Vallee damage suit petition that George Z. Forristall was making 'use' of the Forristall automobile as well as the Vallee automobile; that it is obvious, also, that George Z. Forristall was exercising 'physical control' over the Vallee automobile. And since George Z. Forristall was 'using' the Vallee automobile away from the premises (at the Beaumont Country Club and away from 1250 Oakcrest Circle) and exercising 'physical control' over said automobile, the Federal policy does not provide coverage and Federal is not obligated, therefore, to defend the Vallee damage suit. They contend that one does not have to be driving an automobile to be 'using', 'operating' or exercising 'physical control' over the automobile.

Appellees assert against Federal's contention that young Forristall was not operating or using the Vallee car; that said car was not under his custody or control and that he was not exercising physical control of said car within the meaning of the 'Special Exclusions', Sections '(b)' and '(f)' hereinabove set out.

We do not agree with all of Federal's contentions. We are aware of the general rule that an insurance policy should be construed favorably to the insured and if the language of a policy admits of more than one construction, that most favorable to the insured must be...